Amherst professor Austin Sarat argues that the U.S. Supreme Court’s decision in Students for Fair Admissions v. Harvard, which ended affirmative action in higher education, is the worst legal decision of 2023, setting back efforts to dismantle white privilege in the U.S. and resisting the construction of a more inclusive society. Professor Sarat explains why the decision is undemocratic, exacerbating racial inequities and closing pathways to power and prosperity for students of color, contrary to the aspirations of a genuinely inclusive and egalitarian democracy.
Cornell Law professor Michael C. Dorf comments on last week’s conviction of Sam Bankman-Fried on fraud charges related to the operations of his cryptocurrency platform, FTX. Professor Dorf notes that while some view him as a contemporary Robin Hood, given his donations to effective altruistic causes, his actions raise questions about the line between altruism and criminality.
Cornell Law professor Michael C. Dorf criticizes Florida’s new middle school social studies education standards, which suggest that enslaved people benefited from slavery in some instances by learning skills such as carpentry or blacksmithing that they could later use for personal benefit. Professor Dorf argues that this perspective dangerously minimizes the horrors of slavery, and could be a calculated move by political figures like Governor Ron DeSantis to leverage culture war issues, distort historical truths, and consolidate power.
Amherst professor Austin Sarat comments on an announcement last March by Louisiana Governor John Bel Edwards that he opposed capital punishment and points out that now Governor Edwards has the opportunity to prove his opposition. Professor Sarat argues that Governor Edwards should use his authority to order the Board of Pardons to hold hearings on the death row clemency petitions and review them on their merits to turn his abolitionist rhetoric into action.
UC Davis Law professor Vikram David Amar explains why the “New Illinois” idea—which suggests separating the urbanized Chicago area from the rest of the state—is legally and politically implausible. Professor Amar points out two unanswered constitutional questions and the daunting political hurdles that make the “New Illinois” idea unlikely to ever be more than an idea.
Former federal prosecutor Dennis Aftergut comments on the “speaking indictment” of Donald Trump and what it means. Mr. Aftergut argues that the indictment illustrates the principle no one is above the law.
Cornell professor Joseph Margulies explains that social forgiveness—that is, restoring membership to someone who has committed a wrong against society—is, in the words of one reader “being left alone, free of probation, registration, or record.” Professor Margulies points out that respect for the rules of the group and tolerance for others are essential components of membership in (and reentry into) society.
Marci A. Hamilton—a Professor of Practice in Political Science at the University of Pennsylvania and the founder and CEO of CHILD USA—explains why federal bankruptcy law causes harm to child sex abuse victims. Professor Hamilton points out that numerous Catholic dioceses, as well other large, powerful groups like the Boy Scouts of America and USA Gymnastics have used Chapter 11 to keep their secrets and avoid fairly compensating victims.
Amherst professor Austin Sarat comments on recent reporting that Donald Trump wants to use the firing squad, mass executions, and videos to heighten the drama of capital punishment. Professor Sarat argues that what Trump says about executions reveals the depth of his fascination with ghoulish things and that his latest death penalty musings offer a frightening reminder of the cruelty he would unleash if he is returned to the Oval Office.
In this fifth column in a series about the murder of Tyre Nichols by Memphis police officers, Cornell professor of government Joseph Margulies argues that, for any good to come of Nichols’s death, we must judge his killers in a forgiving spirit. Professor Margulies explains what it means to judge in a forgiving spirit: to assess the actions of another anchored in the unshakeable belief that those who have done wrong are nonetheless one of us.
Cornell Law professor Joseph Margulies continues his discussion of why anger can benefit democracy, but he rebuts claims that only anti-democratic solutions can remedy the harms that are supposedly being inflicted on our society. Specifically, Professor Margulies points out as evidence of effective democratic processes the imminent passage of the Inflation Reduction Act of 2022 and the rejection by Kansas voters of a state constitutional amendment that could allow the legislature to restrict or prohibit abortions in that state.
Middle Tennessee State University professor John R. Vile explains what the Supreme Court’s decision this term in Dobbs v. Jackson Women’s Health Organization implies about the Court’s view of its prior decision in Planned Parenthood v. Casey. Professor Vile argues that it was unlikely a doctrine such as substantive due process could ever adequately resolve such a contentious issue as abortion and predicts that rigid state legislation that makes no exception for cases of rape, incest, and the life of the mother will face similar backlash.
Illinois Law professor Matthew Finkin comments on the Supreme Court’s recent decision in Viking River Cruises v. Moriana, pointing out several issues in the Court’s reasoning and conclusion as to the arbitration questions raised in that case. Professor Finkin argues that the decision incites three lines of inquiry—historical, empirical, and doctrinal—and then begs them, ultimately leaving more questions than it resolves.
Former federal prosecutor Dennis Aftergut comments on yesterday’s first public hearing of the U.S. House’s January 6 Committee. Mr. Aftergut describes four elements of the committee’s opening and the evidence the committee provided in support of element.
Amherst professor Austin Sarat reflects on American law’s worst moment(s) in 2021, noting that this year it was not a single moment but a series of events beginning with the January 6 insurrection. Professor Sarat argues that what followed the insurrection and ratified it demonstrate that Trump and his cronies are lining this country up for an unprecedented constitutional crisis in 2024, and Democrats have done nothing to resist the slow-moving coup.
Cornell Law professor Sherry F. Colb reflects on what the acquittal of Kyle Rittenhouse tells us about domestic violence and society’s expectations based on gender. Professor Colb argues that the law of self-defense, especially as it is developing away from the duty to retreat, demonstrates gender inequality within the criminal justice system by favoring testosterone-fueled vigilantes over the women who choose to survive rather than succumb to domestic violence.
NYU Law professor Samuel Estreicher and 3L Ryan Amelio comment on the unusual move by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) decision to require employee vaccinations for employers with a total of 100 or more employees. Estreicher and Amelio explain why it is unclear whether the Agency has authority to mandate vaccinations and testing.
Steven D. Schwinn, a professor of law at the University of Illinois Chicago John Marshall Law School argues that the Supreme Court’s order last week effectively striking down the COVID-19 eviction moratorium issued by the Centers for Disease Control reflects the Court’s highly partisan approach to executive authority. Professor Schwinn points out that only partisanship can explain why Court upheld the Trump administration’s travel ban in Trump v. Hawaii and struck down the Biden administration’s eviction moratorium.
NYU Law professor Samuel Estreicher and appellate lawyers Rex Heinke and Jessica Weisel comment on a case the U.S. Supreme Court will hear next term that presents the question what role, if any, federal courts should play in facilitating discovery in foreign arbitrations. The authors argue that while the case seems to turn on a simple matter of statutory interpretation, the case may shed new light on how the current Court approaches traditional interpretive tools.
Marci A. Hamilton, a professor at the University of Pennsylvania and one of the country’s leading church-state scholars, argues that the federal Religious Freedom Restoration Act (RFRA) was the first “big lie” in that purported to “restore” case law but actually gave religious actors the right to be above the law. Professor Hamilton notes two bills that have been introduced in Congress that would take measures to carve back RFRA’s destructive reach and which would not, contrary to some claims, threaten true religious liberty.